In Carroll v. State, 975 S.W.2d 630 (Tex. Crim. App. 1998) (referred to hereinafter as "Carroll II"), this Court held that upon appellant's plea of guilty the proceeding automatically became unitary. As a unitary proceeding, appellant's waiver of her right against self-incrimination extended to the entire proceeding. In other words, it was this Court's view that when the proceeding is unitary, a waiver of rights necessarily went to the issues of both guilt and punishment - a waiver could not be had as to one but not the other. The Court did not explain why such a waiver could not apply to the issue of guilt but not to the issue of punishment, but viewed the matter as self-evident by virtue of the fact that both issues were litigated in a single proceeding: ⁽¹⁾

. . . [W]here a defendant pleads guilty either before a judge or jury the trial becomes "unitary." And as a result, there does not exist a separate punishment phase. Therefore, we hold that appellant's written waiver of her Fifth Amendment right not to self-incriminate applied to the entire criminal adjudication proceeding including the assessment of punishment.

Carroll II, 975 S.W.2d at 632. Because there was not a separate punishment "phase," the court held the waiver necessarily applied to both guilt and punishment.

But the Supreme Court made clear that a waiver of one's right against self-incrimination in the context of a guilty plea, turns not upon whether the proceeding in which it is executed is unitary or bifurcated, but upon the nature of what is given up by the guilty plea and the principles underlying one's constitutional right against self-incrimination:

There is no convincing reason why the narrow inquiry at the plea colloquy should entail such an extensive waiver of the privilege. Unlike the defendant taking the stand, who "cannot reasonably claim that the Fifth Amendment gives him ... an immunity from cross-examination on the matters he has himself put in dispute," id., at 155-156, 78 S.Ct. 622, the defendant who pleads guilty puts nothing in dispute regarding the essentials of the offense. Rather, the defendant takes those matters out of dispute, often by making a joint statement with the prosecution or confirming the prosecution's version of the facts. Under these circumstances, there is little danger that the court will be misled by selective disclosure. . . .

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Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony. As the Court stated in Estelle: "Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." 451 U.S., at 463, 101 S.Ct. 1866. . . . The Fifth Amendment by its terms prevents a person from being "compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5. To maintain that sentencing proceedings are not part of "any criminal case" is contrary to the law and to common sense. As to the law, under the Federal Rules of Criminal Procedure, a court must impose sentence before a judgment of conviction can issue. See Rule 32(d)(1) ("A judgment of conviction must set forth the plea ... and the sentence"); cf. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). As to common sense, it appears that in this case, as is often true in the criminal justice system, the defendant was less concerned with the proof of her guilt or innocence than with the severity of her punishment. Petitioner faced imprisonment from one year upwards to life, depending on the circumstances of the crime. To say that she had no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of view, it was most important. Our rule is applicable whether or not the sentencing hearing is deemed a proceeding separate from the Rule 11 hearing, an issue we need not resolve.

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. . . The rule against adverse inferences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights. The Government retains the burden of proving facts relevant to the crime at the sentencing phase and cannot enlist the defendant in this process at the expense of the self-incrimination privilege.

Mitchell v. United States, 526 U.S. 314, 322-30 (1999). The Court in Carroll II did not mention these considerations or anything remotely like them. As the court of last resort for criminal law matters in the State of Texas, we ought to be concerning ourselves with addressing exactly these types of questions. Whether we would have ultimately reached the same conclusions as the United States Supreme Court did in Mitchell is not the point; but we ought to have at least recognized and discussed to some extent the constitutional principles implicated.

With these comments, I join the opinion of the Court.

Delivered March 7, 2001

Publish

1. Ironically, although the Court's reasoning in Carroll II rested on the notion that the proceeding was unitary, the fact is, the proceeding in the instant case was not unitary, but was bifurcated. Carroll II, supra (Meyers, J., dissenting). Whether or not appellant was entitled to a bifurcated proceeding, she nonetheless got one:

Appellant pleaded guilty on July 28, 1995, and testified, pursuant to a written waiver of her right against self-incrimination, that the information contained in each indictment was true and that she was guilty of the charged offenses. This hearing was designated "Hearing on Defendant's Open Pleas of Guilty to Court." At the conclusion of the hearing that day, the trial court: (1) granted appellant's application for a presentence investigation; (2) found there was sufficient evidence to justify a finding of guilt; but (3) reserved the right to make a formal finding of guilt until the completion of the presentence investigation requested by the defense. Three months later on October 13, 1995, following the completion of the presentence investigation, the court proceeded to the sentencing phase of the hearing, designated in the statement of facts as "Final Determination of Guilt/Innocence and Punishment Phase."

Carroll v. State, 946 S.W.2d 879, 881 (Tex. App.-Fort Worth 1997). In other cases where a bifurcated proceeding erroneously occurred following a plea of guilty or nolo contendere, we have made note of the aberrance, but never declared it was actually a unitary proceeding simply because it should have been:

Despite the fact that pleas of guilty in felony cases either before a judge or jury have always been unitary, some confusion has existed among the bench and bar since the advent of Article 37.07, V.A.C.C.P. Records reaching this court frequently show courts bifurcating bench trials where the plea is guilty. Often the court will hear evidence, declare the defendant guilty, order a pre-sentence investigation and sometimes months later re-convene the "penalty stage" of the guilty plea, allowing the State and defense to offer evidence as to punishment or guilt.

Ricondo v. State, 634 S.W.2d 837, 842 (Tex. Crim. App.)(opinion on reh'g); cf. Mason v. State, 604 S.W.2d 83, 89-90 (Tex. Crim. App. 1979)(Clinton, J., dissenting)(criticizing procedure of trial court in part because "what the statutes fashion as a unitary trial on a plea of guilty was bifurcated" where plea hearing was held 3 months before hearing on pre-sentence investigation and even later pronouncement of sentence); Arismendez v. State, 595 S.W.2d 535 (Tex. Crim. App. 1980)(defendant pled nolo contendere but proceeding on punishment was erroneously bifurcated from guilt); Nunez v. State, 565 S.W.2d 536, 539 (Tex.Crim.App.1978)(Onion, P.J., concurring)(noting proceeding was bifurcated where, despite defendant's plea of guilty, trial court recessed hearing after finding defendant guilty in order that pre-sentence investigation report could be prepared); Frame v. State, 615 S.W.2d 766, 767 fn. 1 (Tex. Crim. App. 1981)(noting "trial judge incorrectly bifurcated the trial" following plea of guilty); Bean v. State, 563 S.W.2d 819, 821 (Tex. Crim. App.1978) (Onion, P.J., concurring)(referring to proceedings as bifurcated where, after finding defendant guilty pursuant to guilty plea, trial court recessed for several months in order to obtain presentence investigation reports); Ring v. State, 450 S.W.2d 85, 86-87 (Tex. Crim. App.1970)(noting "at the outset a somewhat unusual procedure was here employed [in] accord[ing appellant] a bifurcated trial at his request upon a plea of guilty"); Allen v. State, 474 S.W.2d 480, 482 (Tex. Crim. App. 1972)(noting "[t]he holding of a bifurcated trial in this [guilty plea] case was unusual"); Thomas v. State, 477 S.W.2d 881, 882 (Tex. Crim. App.1972)(where defendant entered plea of guilty and bifurcated trial held, we noted "this was unnecessary").